People v. Lavergne

• Decision Date: 05 May 1971
• Docket Number: Cr. 14995
• Citation: 94 Cal.Rptr. 405,484 P.2d 77,4 Cal.3d 735
• Parties: , 484 P.2d 77 The PEOPLE, Plaintiff and Respondent, v. Lawrence Earl LAVERGNE, Defendant and Appellant.
• Court: California Supreme Court

Page 405

94 Cal.Rptr. 405

4 Cal.3d 735, 484 P.2d 77

The PEOPLE, Plaintiff and Respondent, v. Lawrence Earl LAVERGNE, Defendant and Appellant.

Cr. 14995.

Supreme Court of California In Bank.

May 5, 1971.

As Modified July 14, 1971.

Don Edgar Burris, Los Angeles, under appointment by the Supreme Court, and Joseph Reichmann, Beverly Hills, under appointment by the Court of Appeal, for defendant-appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., William E. James, Asst. Atty. Gen., and Marilyn Mayer Moffett, Deputy Atty. Gen., for plaintiff-respondent.

PETERS, Justice.

Defendant, Lawrence Earl Lavergne, was found guilty by a jury of two counts of first degree robbery of a men's clothing store. (Pen.Code, § 211.) He was acquitted on two other counts involving robbery of a supermarket. He contends that the trial court improperly denied him the right to impeach the testimony of his accomplice in the clothing store robbery. ¹ He also argues that the prosecutor knowingly used perjured testimony and that the trial judge was biased against him.

On September 16, 1968, about 3 o'clock in the afternoon, four men robbed Ed Burke's Men's Clothing Store in Los Angeles. Three of them, James Oliver, Michael Blaylock and Willie Hodby, were arrested and pleaded guilty.

Two employees of Ed Burke's Men's Clothing Store, Nellicks and Johnson, were present during the robbery and testified at trial. Each separately picked Lavergne at the lineup as one of the robbers and identified him at the preliminary hearing. Both also identified him at the trial.

At the time of the robbery Nellicks was standing behind and Johnson near the counter where the cash register was located. They both testified that Lavergne appeared at the counter with a handgun and marched them to the stock room at the back of the store. The other three robbers then appeared although neither Nellicks nor Johnson was sure whether they entered through the back or front door. Two of the three were also armed with handguns.

Nellicks testified that Lavergne and Oliver ordered him back to the cash register at the counter and ordered him to open it. Lavergne removed the money. He also took Nellicks' watch and ring. Nellicks and Johnson were held in the stockroom for about 10 minutes while the robbers carried four or five thousand dollars worth of clothing out the back door of the store. When asked to describe Lavergne as he remembered him during the robbery, Nellicks testified that he was short and 'slender built,' 5 feet 6 to 7 and 130 or 135 pounds. According to the police report the description he gave to the police following the robbery was of a 20- to 24-year-old male, 5 feet 9, 150 to 160 pounds. Nellicks testified that he had seen Hodby, Oliver and Blaylock, but not Lavergne, in the store for about 15 minutes the morning of the robbery. He stated that he had no doubt that Lavergne was one of the robbers.

Johnson testified that Lavergne took his watch and ring. He also testified that he remembered Lavergne on the day of the robbery as being 5 feet 6 or 7 inches, and 140 pounds. His police record description was not used to refresh his memory, apparently because his testimony substantially conformed to the report.

Oliver testified that he was permitted to plead guilty to second degree robbery in exchange for his testimony. He said that he first met Lavergne on the day of the robbery around 12:30. (He had known the other two robbers for 10 or 11 years.) He was driving around in his car accompanied by Blaylock. They stopped to talk to Lavergne on the street. Blaylock introduced Lavergne to Oliver. Blaylock and Oliver then went to Hodby's house. The three later met with Lavergne again, at which time Oliver brought up the idea of committing a robbery.

Oliver was vague about the source of the guns used in the robbery but declared that he himself never carried one. He said that the gun Lavergne carried was taken from Blaylock's car. Although his testimony was somewhat confusing he appeared to deny that he or Blaylock or Hodby carried guns during the robbery. (Nellicks and Johnson testified that three of the men were armed.)

Oliver drove his car, with Blaylock and Hodby as passengers, and parked a 'couple of blocks' from Burke's Clothing Store. Lavergne drove his car and parked it around the back of the store. Hodby entered the store, then Lavergne, then Blaylock and Oliver. The clothing was loaded into Lavergne's car at the back of the store. Lavergne took the stolen property to Blaylock's house where he was met by Oliver, Blaylock and Hodby. There they divided the clothing between them. Oliver said he left before Lavergne took his share. Oliver's testimony concerning the course of the robbery inside the store conformed substantially to that of Nellicks and Johnson.

Lavergne testified in his own defense. He stated that he did not commit the clothing store robbery. The first time he saw either Willie Hodby or James Oliver was in court after the robbery, although he later stated that he had known Willie Hodby's brother, Roger, two or three months before his arrest. He met Blaylock in the latter part of September, after the clothing store robbery and before he was arrested, when Blaylock's fiancee intriduced them at a bowling alley. ² Blaylock's fiancee lived down the street from him and he had known her for a year. He was arrested on September 30 when he took Blaylock's fiancee to the police station to pick up Blaylock's car keys and take him cigarettes. When asked his name at the police station, he gave an alias.

Lavergne testified that at 3 p.m. on Monday, September 16, the time of the robbery, he was at his sister's house in San Diego. He and a friend, Patricia Martin, left for San Diego in his 1961 Thunderbird 'Saturday night about 1:00.' He brought Patricia Martin back between 5 and 6 p.m. on Sunday so that she could be at work the next day. Around 9 a.m. Monday morning he headed back for San Diego to attend a going-away party for his sister. He stayed until Wednesday. He stated a number of sisters and nieces attended the party and one sister's boyfriend. He also testified that he bought his Thunderbird in early September and that it had been recently impounded because he did not make his payments.

Patricia Martin testified that on a Saturday night 'in the middle part' of 1968 she had gone with Lavergne to his sister's house in San Diego and that they returned on Sunday after 4. She returned so that she could go to work the next day. She stated that she had not worked since June of 1968 which would fix the date of the San Diego trip three months earlier than the robbery. She did, however, say that they made the trip in Lavergne's blue Thunderbird, which he testified he bought in September.

Lavergne's sister Lucille Carter testified that Lavergne had come to San Diego on Saturday, September 14, with a girl whose name she could not remember, returned to Los Angeles on Sunday, was back in San Diego Monday before sunup and stayed until the middle of the week. She said that the family had a get-together that weekend and the previous weekend at least partly because her sister Dolores was moving to New Mexico. She said that Lavergne was driving a blue car but she did not remember the make or model. She knew the date because her sister got her welfare check on the 16th and Lavergne was to take her downtown to do some shopping. She said she had not talked to Lavergne's lawyer but had talked twice to Lavergne while he was in jail. None of the other persons at the party on that weekend testified.

Several policemen testified. Their testimony revealed that none of the stolen items were found in Lavergne's possession. Stolen property was recovered from Oliver, the house where James Hodby, Willie Hodby's brother lived, and from one Daniel Hayes who was arrested but had since disappeared. Nor were any weapons found in Lavergne's possession. Although fingerprints were apparently taken at the clothing store, none were introduced at trial.

There was some identification confusion at the preliminary hearing, but none was involved in the identification of Lavergne himself. ³

During Oliver's testimony, he mentioned his car several times. On cross-examination, the defense attorney asked him where he got the automobile, a 1968 Cadillac. Over the prosecution's objection he was allowed to answer that he bought it. The defense attorney then asked him if it was stolen, to which he replied that it was not. The defense then sought to impeach Oliver's credibility by introducing testimony to show that the automobile was stolen. His offer of proof included testimony by the owner of the Cadillac that in August he had had the car picked up by a tire company at his place of business, the tires replaced, and the car returned. The tire company employee who picked up and returned the automobile was James Oliver. Shortly thereafter, it was stolen and was not recovered until the arrest of Oliver in September. The judge sustained the prosecution's objection basing its ruling on Evidence Code, section 352. ⁴

Section 352 provides: 'The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' The trial judge indicated that he excluded the evidence because its probative value was 'far' outweighed by the time it consumed and its prejudicial and confusing effect on the jury.

The Evidence Code provides that all relevant evidence is admissible unless otherwise provided by statute. (§ 351.) Evidence going to the credibility of a witness is relevant evidence. (§§ 406, 780.)

Section 780 of the Evidence Code provides that, except as otherwise provided by statute, the court or jury in assessing the witness' credibility may consider 'any matter that has...